Chapter 8 - Criminal capacity- mental illness and youth

Question 1

Explain the defense of mental illness

Answer 1

Criminal capacity may be excluded excluded by the mental illness or abnormality of the accused. The defense of mental illness was previously known as the defense of insanity. The latter term has, however, fallen into disfavour in modern psychology.

Question 2

What are mental illness or defect requirements?

Answer 2

1. The word mental illness or defect refers to a pathological disturbance of the mental faculties. Pathological means sick or diseased. the words do not refer to a mere temporary clouding of the mental faculties due to external stimuli such as alcohol, drugs, or even provocation.
2. The court must determine whether X was suffering from a mental illness or defect with the help of expert evidence given by psychiatrists.
3. It is not necessary to prove that a mental illness or defect originated in X’s mind: the defense may be successful even if the origin of the illness was organic.
4. The duration of the illness is not relevant. It may be of either permanent or a temporary nature. In the latter case, it must, of course, have been present at the time of the act. If Lebo was mentally ill before and after the act, but she committed the act at the time when she happened to be sane, she does not lack criminal capacity. Such a lucid interval between periods of mental illness is referred to in legal terminology as a lucidum intervallum (lucid interval)
5. Although intoxication in itself does not constitute mental illness, the chronic abuse and subsequent withdrawal symptoms of liquor can lead to a recognised mental illness known as delirium tremens.

Question 3

With whom does the onus of proof lie to prove mental illness?

Answer 3

It is presumed that everyone does not suffer from a mental illness or mental defect until the contrary is proved on a balance of probabilities. The burden of proving insanity rests on the party raising the issue. This means that if the accused raises the defense of mental illness, the burden of proving that she suffered from mental illness at the time of the commission of the unlawful acts falls upon her.

Question 4

What happens if the defence of mental illness is successful?

Answer 4

The court issues one of the following orders:

1. Lebo must be admitted to , and detained in, an institution stated in the order and treated as if she were an involuntary mental health care user.
2. Lebo be released subject to such conditions as the court considers appropriate
3. Lebo be released unconditionally.

Question 5

What is the new minimum age of criminal capacity?

Answer 5

A child who commits an offence under the age of 12 does not have criminal capacity and cannot be prosecuted for that offence.

A child who is 12 or older but under the age of 14 and who commits an offence is presumed to lack criminal capacity, unless the State proves that he or she has criminal capacity.